DATE: February 5, 2024 Court File No.: 4360-999-22-1585591X
ONTARIO COURT OF JUSTICE (Municipality of Kawartha Lakes. Central East Region)
IN THE MATTER OF THE PROVINCIAL OFFENCES ACT R.S.O. 1990
RAFAL KASZNIA APPLICANT
-and-
HIS MAJESTY THE KING Ex. Rel. THE CITY OF KAWARTHA LAKES RESPONDENT
BEFORE HIS WORSHIP MOHAMMED BRIHMI
REASONS FOR JUDGMENT
Hearing date: November 27, 2023 Judgment rendered: February 5, 2024
APPEARANCES: K. Fitzgerald, Prosecutor on behalf of the Municipality of Kawartha Lakes J. Bonin, Agent on behalf of the Defendant Rafal Kasznia
Nature of the application
[1] The court will deal with the matter of Rafal Kasznia. His representative brings before the Court a Charter motion that alleges a violation of the applicantâs rights under s. 7 of the Charter of Rights and Freedoms.
[2] The applicant has clarified in an email that he is not seeking a remedy with an order pursuant to s. 24 (1) of the Charter, as stated mistakenly in his application. Instead, he is requesting the matter to be adjourned for a later trial date.
[3] On September 1, 2022, the applicant submitted a request of disclosure with 14 items, and on November 7, 2022, it was provided to him. This disclosure includes handwritten notes of the officer, excerpts from the Genesis II Select Radar manual, notice of an amendment related to Winlow, a certified copy of the applicantâs driving record and a letter about the officerâs qualifications. The letter indicates that the officer will testify as a qualified witness.
[4] In addition to the disclosure received, the applicant is seeking further items, such as the specific manual that was used by the officer for the laser device, documents about his qualifications and the GPS information regarding the time the device was tested and its locations.
[5] It is worth noting that the defendant is facing a Part 1 certificate of a speeding offence contrary to s. 128 of the HTA that took place on July 30, 2022. The alleged speed on the certificate is 80 kilometres per hour in a 60 kilometres per hour zone.
[6] The Court heard from Mr. Bonin, who is acting as the legal representative for the applicant and from Ms. Fitzgerald on behalf of the prosecution.
The position of the parties
[7] The Court summarizes the position of the applicant as follows:
A The manual for the proper device used by the Officer
[8] The applicant contends that the disclosure issue with which he has the greatest concern is the correct manual for the device that was utilized by the officer which was the Genesis II Decatur Directional Radar. The applicant submits that the prosecution provided him with the manual for a different device, the Genesis II Select.
[9] Therefore, the applicant argues that they are entitled to the manual for the device that was used, as it is not only relevant but necessary to challenge the speed that was reached with the proper manual.
[10] Furthermore, defence submits if the operating modes of the two devices, the Directional and the Select are different, how could they question or establish whether or not the device was utilized properly if they donât have the disclosure that advises them the proper modes the device effects?
[11] The applicant told the Court he has seen the manual for the Genesis Directional. In addition, he did an online search, and the Region of Durham has apparently a copy of the Genesis II Directional.
[12] Therefore, there is a manual for the device used by the Officer, and the applicant is entitled to it according to his referral to Court of Appeal decision in R. v. McGuigan of 2018 ONCA 1062.
B The qualifications of the Officer
[13] The applicantâs representative submits that he was told by the prosecution that the Officer is going to give evidence as to his qualification. However, he contends that he is entitled to the Officerâs qualifications in advance of the trial to be able to verify their accuracy and if there are any documents that exist for this effect.
[14] For the defence, the qualifications of the officer are relevant, and they are entitled to know what he will testify to in advance by virtue of disclosure to verify and challenge it.
[15] The applicantâs agent submits that the OPP does and has provided in the past for some of his matters some information in relation to the officerâs qualifications. In addition, he asserts that there is always a set of a written account for the police services to keep track of the qualifications of the officers to know when they need to do the re-qualifications.
[16] Furthermore, the applicant told the Court If Officer Brown is an instructor, this information is contained in the record of the Ontario police service.
C The GPS records from the OPP in relation to the time and location of the device being tested
[17] The applicant contends they need the GPS records from the OPP in relation to the reading of the vehicle operated by the officer from 0720hrs. to 0740 hrs. and from 1445 hrs. to 1505 hrs. to verify the location and the time of the tests conducted on the speeding device.
[18] Mr. Bonin argues that this information is within the OPP records and on some occasions, it has been provided. He contends that this request is relevant for the specific reason that it involves the locations and the tests with the vehicle moving to verify if those tests were conducted as indicated.
D Breach of the applicantâs rights under s. 7 of the Charter?
[19] The applicant told the Court that the prosecution has failed to provide, in a timely fashion, the full disclosure which has impaired his ability to make full answer and defence. According to the applicant, this constitutes an infringement of his rights under s. 7 of the Charter and s.46 (2) of the POA, R.S.O. 1990.
[20] In addition, the applicant asserts that he has been diligent in his quest for full disclosure and the prosecution has a duty to provide it as it is relevant and will assist him in making full answer and defence to the charge.
The position of the Prosecution
A: Manual for the proper device used by the Officer:
[21] The Prosecution submits they have addressed this issue of the manual through correspondence. Ms. Fitzgerald told the court that they have raised the question with Constable Brown in relation to the manual and received a reply that was forwarded to Mr. Boninâs Office on different occasions. The reply indicates that the manual for the Select and Directional devices are the same. According to the officer, the difference in name relates to the software versions and mode in which the device is being operated.
[22] In addition, Prosecution contends that Constable Brown is not only just a qualified operator, but also an instructor of the radar device.
[23] Therefore, the prosecution argues that they have disclosed the only manual that exists for the device and the defence could ask the officer questions in relation to the utilization of the device in cross-examination during the trial. The prosecution maintains that they canât provide something that does not exist, and the Officer is not aware of a separate manual for these devices.
[24] According to the prosecution, if Mr. Bonin is able to access the manual through other means, he clearly has a copy of the manual, so it makes the issue a moot point going forward.
B Documents regarding the qualifications of the Officer
[25] The prosecution argues that the qualifications of the officer are not something that need to be provided as they are not essential elements of the offence. They contend to have disclosed and provided the applicant with a letter suggesting the Officer is qualified.
[26] Furthermore, the prosecution submits that there is a plethora of case law indicating there is no set way an officer needs to be qualified. Therefore, there is no set way those qualifications need to be recorded and there canât be a requirement that such information be disclosed.
C GPS coordinates
[27] The prosecution argues that it is absurd that GPS coordinates would need to be provided for a speeding charge. In addition, Ms. Fitzgerald submits that the notes of the officer, which were disclosed, include the timing of the tests and their results and this information can be confirmed and expanded upon at trial.
[28] Furthermore, the prosecution referred the Court to the decision of HW Coopersmith in Durham (Regional Municipality) v. Driscoll-Rogers of 2008, indicating that the disclosure for HTA matters can be simple and brief and that in the absence of notes, a will say statement may have been appropriate.
D s 7 of the Charter
[29] In their submission, the prosecution referred to the decision of R. v. White of the Supreme Court of Canada, [1999] 2 S.C.R. 417, para 38, that outlines the three-stage analysis in determining whether s. 7 of the Charter has been infringed. First, is there a real or imminent deprivation of life, liberty, security of the person or a combination of these interests? Second, the court must identify and define the relevant principle or principles of fundamental justice. Third, it must be determined whether the deprivation has occurred in accordance with the relevant principle or principles.
[30] Therefore, the prosecution contends if there is no risk of imprisonment, there is no breach to s. 7 of the Charter. In addition, the matter before the Court involves a Part 1, speeding offence and the applicant is not facing imprisonment as an option if he is convicted.
[31] Moreover, the prosecution referred to para 74 of OâConnor: âWhere the accused seeks to establish that the non-disclosure by the Crown violates s. 7 of the Charter, he or she must establish that the impugned non-disclosure has, on the balance of probabilities, prejudiced or had an adverse effect on his or her ability to make full answer and defence. It goes without saying that such a determination requires reasonable inquiry into the materiality of the non-disclosed information. Where the information is found to be immaterial to the accused's ability to make full answer and defence, there cannot possibly be a violation of the Charter in this respectâŚThe focus must be primarily on the effect of the impugned actions on the fairness of the accused's trial. Once a violation is made out, a just and appropriate remedy must be found.â
The issues
[32] The main issues to be addressed are as follows:
- Is the Applicant entitled to the disclosure of the specific manual for the laser device that was used by officer, the Genesis II Decatur Directional Radar?
- Did the prosecution fulfil its obligation by providing the manual for the laser device, the Genesis II Decatur Select as the Officer has advised that the manual for the Select and Directional devices are the same, the difference in name relates to the software versions and the mode in which the device is being operated?
- Should the documents about the qualifications of the Officer be provided as a disclosure requirement for a Part I certificate of a speeding offence?
- Should the prosecution provide the GPS coordinates from the OPP in relation to the time the officer conducted the radar tests, and their locations?
- Is there a breach of the applicantâs rights under s.7 of the Charter âthe right to life, liberty and security of personâ that applies to this Part I certificate for a speeding offence under the POA?
Analysis
1. Is the applicant entitled to the disclosure for the specific manual of the laser device that was used by officer, the Genesis II Decatur Directional Radar?
[33] With respect to the first issue raised, the applicant relied heavily on R. v. McGuigan of the ONCA, 2018.
[34] In my view, the core issue addressed by McGuigan was that the disclosure for the user manual was relevant first party disclosure under Stinchcombe. The prosecution has an obligation and duty to provide it to the applicant when it is requested.
[35] The officer used the Genesis II Decatur Directional Radar, and the prosecution provided the applicant with the manual for the Genesis II Decatur Select Radar indicating that they are the same, and the only difference is with the name which relates to the software versions and the mode the device is being operated in.
[36] In my view, the defence is entitled to the specific manual (Directional) of the device used that the prosecution is relying on to ensure the officerâs compliance with the manufacturerâs testing specifications.
[37] In addition, the operational modes and procedures are relevant to the applicant to establish whether the device was utilized in the proper modes to reach the result of the speed with which the applicant was charged. This is important for the accuracy and the reliability of the results of the speed measuring device. Therefore, the proper manual would be relevant to the defence to challenge the prosecutionâs reliability on the results of the speed measurement device.
[38] For this, I quote Para. 100 of McGuigan: âIn our view, this cannot reasonably be contested. Testing and operating procedures are provided precisely so that users can accomplish what the device is designed to accomplish, in this case, to provide an accurate measure of speed. If testing and operating procedures are not complied with, it may cast doubt on the integrity of the results. Naturally, compliance with testing and operating procedures cannot be determined unless those testing and operating procedures are known. Hence, the relevance for disclosure and production purposes of the manufacturerâs testing and operating procedures for a speed-measuring device that is relied on in the prosecution of a case.â
[39] For the Court, the Genesis II Decatur Directional Radar manual is obviously relevant and will assist the applicant to make full answer and defence to the charge he is facing.
2. Did the prosecution fulfil its obligation by providing the manual for the laser device, the Genesis II Decatur Select as the Officer has advised that the manual for the Select and directional devices are the same, and the difference in name relates to the software versions and the mode the device is being operated in?
[40] The respondent submits that they have addressed the issue of the manual through correspondence and provided the applicant with the only manual that exists for the speed-measuring device, the Genesis II Select Radar. However, I am questioning how both devices, the Genesis II Directional and Select, can be the same when they have different names, different software versions, and different operational modes?
[41] As the applicant has advised the Court that the manual for the Genesis II Directional Radar exists on the internet and in other jurisdictions in Ontario. The prosecution must make reasonable efforts and inquiries to find out and provide the proper manual for the defence.
[42] I add that there is an obligation on the part of the prosecution, as described by Karakatsanis J. in Quesnelle, at para. 12, that reads as follows: In R. v. McNeil ⌠âthis Court recognized that the Crown cannot merely be a passive recipient of disclosure material. Instead, the Crown has a duty to make reasonable inquiries when put on notice of material in the hands of police or other Crown entities that is potentially relevant to the prosecution or the defenceâ.
[43] I do not agree with the submission of the respondent. For me, the prosecution is obligated to provide the proper manual for the device that was used by Officer Brown. In addition, the manual for the Genesis II Directional exists on the internet and the applicant is entitled to have the disclosure for the proper manual.
[45] On the basis of the foregoing, I order the manual for the Genesis II Directional Radar to be disclosed. The prosecutor can discharge this obligation by posting the relevant passages of the manual on its website, and then provide the URL to the specific webpage to the defendant. If there is any issue with this order, please let me know on or before the trial date.
3. The qualifications of the officer
[46] Both parties, the applicant and the respondent, agree that the qualifications of the officer are not an element of the offence that needs to be proven. However, the applicantâs representative asserts that the qualifications of the officer are relevant, and they are entitled to receive any documents to verify their accuracy.
[47] On this issue, the respondent has already provided the defence with a letter indicating that the officer is qualified. In addition, the HTA of Ontario has no particular set of qualifications required for an officer who observes and charges someone with a speeding offence. The Court is aware that this issue was addressed by appellate courts on several occasions.
[48] I refer to one of the latest decisions from Justice Gage in R. v. Marinho, 2019 where he said, and I read from Para 22: âEvidence coming from a police officer operating specialized equipment used to detect speeding vehicles is expert testimony. The only requirement for the admission of expert opinion is that the expert witness possesses a special knowledge and experience going beyond that of the trier of fact. Deficiencies in the expertise go to weight, not to admissibility.â
[49] In addition, I am quoting Justice Pockele in R v Williams where he said at paragraph 7: âThere is no requirement in the Highway Traffic Act that the operator of a speed detection device achieves a certain level of qualification as a prerequisite to accepting the operators evidence of the rate of speed; the fact that an operator received no training whatsoever, or received training deemed appropriate by his superiors, this may be qualification, or was relatively inexperienced although properly trained and qualified, are all factors which the Judge or Justice of the Peace can take into consideration when weighing the evidence to establish whether the rate of speed has been established beyond a reasonable doubt or whether the defence has raised a reasonable doubt. It is important to remember that the weighing or assessing of the evidence must not be done on a piecemeal basis and must only be done having regard to all of the evidence before the Courtâ.
[50] In my view, this request appears speculative and resembles a fishing expedition. There is no need for any specific document or additional documents to be given other than the letter that was already provided. The request for further documents is irrelevant as the defence will have the opportunity to cross examination. It would be up to the Court to determine the reliability and credibility of the evidence presented, considering any doubts raised by the defence.
[51] Based on the evidence Iâve accepted, the request for further documents about the qualifications of the officer is dismissed.
4. Should the prosecution provide the GPS coordinates from the OPP in relation to the time the officer conducted the tests on the radar, and their locations?
[52] On the issue of the applicantâs submission regarding the GPS on the officerâs vehicle and the timing of the testing and their locations, the respondent argues that providing the GPS coordinates for a speeding charge is absurd.
[53] I am unable to agree with the defence position which I find speculative and a clear fishing expedition. The GPS data is not an essential element to prove the offence of speeding. Moreover, I am not even sure if the police cruiser used by the officer is equipped with the GPS. Moreover, the officer may have conducted different tests for the device at various times and locations.
[54] In my view, consenting to such a request could open the gate to frivolous requests that would impose a burden on the police if they were required to disclose such information each time they receive such a request. Additionally, the notes of the officer which were disclosed to the applicant contain the timing of the tests and their results. The defence will have the opportunity to cross examine the witnessâs evidence and ask any relevant question about them.
[55] Therefore, I donât see the relevance of this request and its impact on the ability of the applicant to make full answer and defence.
5. Is there a breach of the applicantâs rights under s.7 of the Charter âthe right to life, liberty and security of personâ that applies to this Part I certificate of the POA of a speeding offence nature?
[56] While Stinchcombe outlines the applicantâs right to disclosure, it is important to note that this right is not absolute. As Justice Sopinka stated in para. 20, ââŚWhile the crown must err on the side of inclusion, it needs not produce what is clearly irrelevant.â
[57] I am mindful of the spirit of Jamieson (As stated in R. v. Jamieson (1981), 64 C.C.C. (2d) 550 (Ont. C.A.) at 552, and the plethora of case law that emphasizes the purpose of the POA which is to ensure that defendants have a forum for a speedy, efficient, inexpensive, and fair resolution to their matters. While preserving the defendantâs rights to defend themselves, it is not intended to be bogged down with technicalities and complexities, which otherwise may be found in more serious and perhaps complex indictable criminal court proceedings.
[58] The case before me pertains to a speeding charge issued as a Part 1 offence. It is an absolute liability offence. There is no evidence to suggest that it is anything other than a minor and routine offence. Therefore, the disclosure for such matters can be simple and brief.
Conclusion
[59] Upon a careful review of the material submitted by both parties and their respective submissions, I am satisfied that the prosecution was diligent and provided sufficient disclosure. This will enable the defendant to make full answer and defence.
[60] I believe that the request for disclosure was properly addressed by the prosecution to protect the defendantâs right and allow him to make full answer and defence to the charge. Consequently, I accept that section 7 of the Charter does not apply to this Part 1 speeding offence, and I am satisfied there was no breach to the right of the applicant to make full answer and defence.
[61] Furthermore, I hereby dismiss this application based on s. 7 of the Charter, and the matter will be dealt with on its merit during the trial date scheduled for May 14, 2024.